Paul Allen's patent infringement complaint against the world and its dog has been dismissed.

The court agreed with Google et al that it "lacks adequate factual detail to satisfy the dictates of Twombly and Iqbal" and also "fails to provide sufficient factual detail as suggested by Form 18". The court doesn't agree with Allen's Interval Licensing that the two cases do not apply to patent complaints, but it doesn't even need to go there: "The Court does not find it necessary to determine whether Form 18 is no longer adequate under Twombly and Iqbal because Plaintiff's complaint fails to satisfy either the Supreme Court's interpretation of Rule 8 or Form 18."

Go Google. That was their argument in their motion to dismiss, along with AOL's. Google said the complaint was too vague to meet the standard under Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Then, after Interval Licensing brought up the lower patent form standard it thought should apply instead, AOL jumped in saying the complaint was too vague under even that standard, and the court agreed. I'm happily surprised.

Allen can refile an amended complaint with more details by no later than December 28th. But if it chooses to do so, it must be specific:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because
Plaintiff has failed to identify the infringing products or devices
with any specificity. The Court and Defendants are left to guess
what devices infringe on the four patents. ... These allegations are insufficient to put Defendants on
"notice as to what [they] must defend." McZeal, 501 F.3d at
1357...

12/10/2010 - 147 - ORDER ON MOTIONS TO DISMISS RE: 62 80 92 Motion to Dismiss. The Court GRANTS the motion to dismiss and gives Plaintiff leave to file an amended complaint by no later than 12/28/2010, by Judge Marsha J. Pechman.(MD) (Entered: 12/10/2010)

As text:

****************************

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Plaintiff has filed a complaint against eleven defendants,
arguing that they have variously infringed on four patents
Plaintiff holds: (1) United States Patent No. 6,263,507 ('507
patent); (2) United States Patent No. 6,034,652 ('652 patent); (3)
United States Patent No. 6,788,314 ('314 patent); and (4) United
States Patent No. 6,757,682 ('682 patent). The allegations in the
complaint are spartan. They identify the patent numbers and titles,
as well as the nature of the business that developed the patents.
Plaintiff then serially alleges that certain defendants have
infringed on the patents. Plaintiff does not indicate with any
specificity which of Defendants' products or devices infringe the
patents.

As to the '507 patent, Plaintiff alleges as that each Defendant
except Facebook:

. . . has infringed and continues to infringe on one or
more claims of the '507 patent. [Each Defendant except Facebook] is
liable for infringing the '507 patent under 35 U.S.C. § 271 by
making and using websites, hardware, and software to categorize,
compare, and display segments of a body of information as claimed
in the patent.

(Complaint ¶ 24; seeid. ¶¶ 21-30.) As
to the '652 patent, Plaintiff alleges that Defendants AOL, Apple,
Google, and Yahoo! have "infringed and continue[] to infringe one
or more claims in the '652 patent" and that they do so "by making,
using, offering, providing, and encouraging customers to use
products that display information in a way that occupies the
peripheral attention of the user as claimed in the patent."
(Seeid. ¶¶ 33-36.) As to the '314 patent,
Plaintiff alleges that AOL, Apple, Google, and Yahoo! have
infringed on the claims of the patent by "making, using, offering,
providing, and encouraging customers to use products that display
information in a way that occupies the peripheral attention of the
user as claimed in the patent." (Seeid. ¶¶
4042.) And as to the '682 patent, Plaintiff alleges that all
Defendants have infringed on one or more claim of the patent "by
making and using websites and associated hardware and software to

(2)

provide alerts that information is of current interest to a user
as claimed in the patent." (Seeid. ¶¶
45-55.)

"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Iqbal, 129 S. Ct. at
1949 (quoting Twombly, 550 U.S. at 570). "Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id. (citing
Twombly, 550 U.S. at 555). A plaintiff must "provide the
'grounds' of his 'entitle[ment] to relief.'" Twombly, 550
U.S. at 555 (citations omitted). "A pleading that offers 'labels
and conclusions' or 'a formulaic recitation of the elements of a
cause of action will not do.'" Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 555).

The Federal Rules of Civil Procedure provide Form 18 as the
example complaint for patent infringement. The model complaint
requires Plaintiff to set forth the patent number, the date on
which the patent was issued and the general nature of the patented
invention (in the case of the Form, an "electric motor"). The Form
further requires an allegation that "[t]he defendant has infringed
and is still infringing on the Letters Patent by making selling,
and using electric motors that embody the patented
invention, and that defendant will continue to do so unless
enjoined by this court." Fed. R. Civ. P. Form 18 (emphasis in
original). The Form thus requires some specificity as to
defendant's product that purportedly infringes the patent. The
parties

(3)

dispute whether Twombly and Iqbal made Form 18
inadequate to satisfy Rule 8. The Court does not find it necessary
to determine whether Form 18 is no longer adequate under
Twombly and Iqbal because Plaintiff's complaint fails
to satisfy either the Supreme Court's interpretation of Rule 8 or
Form 18.

The Court disagrees with Plaintiff's argument that
Twombly and Iqbal do not apply to patent suits.
(See Dkt. No. 123 at 4-5.) Plaintiff cites a Federal Circuit
decision to suggest that notice pleading in patent suits is
unchanged by Twombly. SeeMcZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1356-57 (Fed. Cir. 2008) (decided after
Twombly but before Iqbal). The court in McZeal
did not make such a broad holding. Rather, the divided court, which
was considering a pro se complaint to which a deferential standard
applies, held that the plaintiff still had to "plead facts
sufficient to place the alleged infringer on notice as to what he
must defend." Id. at 1357 (citing Twombly, 550 U.S.
at 565 n.10). The court made no attempt to hold that Twombly
does not apply to the patent context. The Supreme Court has also
made clear that its interpretation in Twombly has an
extremely broad reach. After Twombly, the Court applied the
same rule in the context of prisoner litigation in Iqbal. If
the Supreme Court believes the Twombly rule applies in the
context of both antitrust and prisoner litigation, there is no
little reason to believe the Court would not also apply the rule to
patent suits. Plaintiff has certainly not provided a convincing
reason for this outcome. Indeed, even under McZeal's
rationale (on which Plaintiff relies heavily), Plaintiff must
identify sufficient facts about the allegedly infringing device to
put Defendants on notice of their infringing conduct, as required
by Iqbal and Form 18.

Thus, the Court requires Plaintiff to assert sufficient facts as
to the nature and identity of the purportedly infringing products
and devices that form the basis of the complaint. These

(4)

allegations must "contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face.'"
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S.
at 570).

B. Adequacy of the Pleadings

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because
Plaintiff has failed to identify the infringing products or devices
with any specificity. The Court and Defendants are left to guess
what devices infringe on the four patents. Plaintiff only indicates
that Defendants have websites, hardware, and software that infringe
on the patents or that they are encouraging third parties to use
products that infringe on the patents. This fails to indicate to
Defendants which of their myriad products or devices may be at
issue. These allegations are insufficient to put Defendants on
"notice as to what [they] must defend." McZeal, 501 F.3d at
1357 (citing Twombly, 550 U.S. at 565 n.10). They are also
too generic to satisfy Form 18. Plaintiff urges the Court and
Defendants to have patience and simply await delivery of the
infringement contentions as required by Local Rule. This ignores
that Local Rules do not trump the Federal Rules of Civil Procedure
or the Supreme Court's mandate in Twombly and Iqbal.
Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953.
Plaintiff's complaint is little more than labels and conclusions,
which are inadequate under Twombly, Iqbal, and even
Form 18. The Court GRANTS the motions to dismiss.

The two cases Plaintiff relies on to support a different outcome
are factually distinguishable. The court in McZeal
considered a pro se complaint and employed the deferential
standards that apply to such pleadings. McZeal, 501 F.3d at
1356 ("Where, as here, a party appeared pro se before the trial
court, the reviewing court may grant the pro se litigant leeway on
procedural matters, such as pleading requirements.") Here,
Plaintiff is represented by counsel and no deferential standard
applies. Moreover, the pro se plaintiff in McZeal

(5)

specifically identified the purportedly infringing product, a
Motorola i930 cellular telephone. Id. at 1355. Plaintiff has
failed to match the specificity that the pro se plaintiff in
McZeal mustered. McZeal is thus distinguishable.
Ware v. Circuit City Stores, Inc., et al., 4:05-CV-0156-RLV,
2010 WL 767094 (N.D. Ga. Jan. 5, 2010)), is also factually
distinguishable and actually supports Defendants' position.
(See Dkt. No. 123 at 6, 9.) The court in Ware held
that the plaintiffs' amended pleadings which only identified the
name of the defendant and paraphrased 35 U.S.C. § 271(a) were
inadequate to survive dismissal "[e]ven with the liberal notice
pleading requirements of Rule 8." Ware, 2010 WL 767094, at
*2. The court found plaintiffs' failed to identify the infringing
device with adequate specificity, even though it used the word
"apparatuses" to describe the infringing product. Id.
Similar to the complaint in Ware, Plaintiff's complaint here
fails to identify the purportedly infringing products with any
reasonable specificity.

The Court gives Plaintiff leave to file an amended complaint
within 15 days of the scheduling conference, which is set to take
place on December 13, 2010. This is the same date by which
Plaintiff contends it will file its purportedly curative and
detailed infringement contentions. See Local Patent Rule 120
(requiring disclosure of asserted claims and infringement
contentions within 15 days of a scheduling conference); (Dkt. No.
123 at 10.) Thus, the task of amending the complaint with the
necessary detail should not be onerous.

In amending the complaint, Plaintiff must identify which of
Defendants' products, devices, or schemes allegedly infringe on
Plaintiff's patents. Plaintiff need not describe how the accused
devices satisfy each limitation of each asserted claim. SeeMcZeal, 501 F.3d at 1357. Plaintiffs should, where possible,
set forth the specific websites that are at issue and identify the
hardware and software with adequate detail for Defendants to know
what portions of their business operations are in play in this
litigation. Where possible, the Court urges Plaintiff to

(6)

identify the infringing hardware and software with any relevant
product identifiers (e.g., SKUs, barcodes, or other identifiers)
and descriptions. Plaintiff must also add greater factual detail as
to the conduct or devices that make or encourage Defendants'
customers to "use products that display information in a way that
occupies the peripheral attention of the user" (See, e.g.,
Compl. ¶¶ 33, 39.) This is consistent with Twombly
and Iqbal, which require Plaintiff to identify the factual
basis for its claims. See, e.g., Bender v. L.G. Elecs.
U.S.A., Inc., No. C09-02114 JF (PVT), 2010 WL 889541, at *3
(N.D. Cal. Mar. 11, 2010). This is also consistent with Form 18,
which requires identification of the product or device alleged to
infringe on the patent.

Conclusion

Plaintiff's complaint lacks adequate factual detail to satisfy
the dictates of Twombly and Iqbal. The complaint also
fails to provide sufficient factual detail as suggested by Form 18.
The Court GRANTS the motion to dismiss and gives Plaintiff leave to
file an amended complaint by no later than December 28, 2010.